It’s old hat to blog about the problems of copyright law (e.g., here’s some of my thoughts on copyright trolls). There are over a quarter million pages discussing Lawrence Lessig’s “Free Culture” idea. Summed up in a quote:

There has never been a time in history when more of our ‘culture’ was as ‘owned’ as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now.

Which brings us to Miles Davis. No poetic license is needed to say that Miles Davis lives in the souls of millions of Americans, to say that, at a minimum, Kind of Blue is part of the fabric of American society. Whatever your preference, from electronica to indie rock, from Frank Zappa to Radiohead, there’s little doubt that consoles you when you’re down and inspires you when you’re up was influenced by Miles Davis, and likely specifically by Kind of Blue.

So it was with Andy Baio, who organized a “chiptune” tribute to Kind of Blue called Kind of Bloop. “Chiptune,” in which 8-bit electronic synthesizers are used to create the music, of course didn’t exist as a musical genre when Miles died in 1991. Such is the extraordinary influence of Davis.

So Baio did what a person preparing a music complication is supposed to do:

I went out of my way to make sure the entire project was above board, licensing all the cover songs from Miles Davis’s publisher and giving the total profits from the Kickstarter fundraiser to the five musicians that participated.

Baio’s post recounting it all is titled, “Kind of Screwed,” so you can see where this is going:

But there was one thing I never thought would be an issue: the cover art.

Before the project launched, I knew exactly what I wanted for the cover — a pixel art recreation of the original album cover, the only thing that made sense for an 8-bit tribute to Kind of Blue. I tried to draw it myself, but if you’ve ever attempted pixel art, you know how demanding it is. After several failed attempts, I asked a talented friend to do it.

You can see the results below, with the original album cover for comparison.

Kind Of Blue - Pixelated Fair Use Example

It’s the same image, but different because it is pixelated into “pixel art,” transformed in the graphical analogy to the 8-bit chiptune sonic crunching.

That prompted a demand letter from attorneys for Jay Maisel, the photographer who shot the original photo of Miles Davis. I won’t spoil the rest of Baio’s post, which is a must-read for anyone interested in copyright, except to say it ends with Baio paying Maisel $32,500 and agreeing not to use the pixelated image anymore.

Baio’s discussion is nothing unusual or unexpected to people familiar with debates over the viability of “fair use” in copyright law, but Baio writes it in a clear, evocative style with exceptional examples of the type of minimalist modifications that are commonplace on the Internet these days and undoubtedly their own breed of transformative art.

Baio did not admit guilt through his settlement, which makes it all seem even more unfair. As Jason Kottke says,

Seeing this kind of behavior from large clueless companies is almost expected but from a a fellow creative artist? Inexcusable. Surely some reasonable arrangement could have been made without visiting enormous stress and a $30K+ bill onto a man with a young family. Disgusting.

That sentiment seems pretty common across the Internet. Maisel was, of course, within his rights to raise the demand. Which raises an obvious question: should our law allow someone to do something “inexcusable” and “disgusting?”

Of course, there is a considerable Devil’s Advocate argument to be made here. What would Baio think if a group of artists devoted extensive time, energy and money towards creating an album of entirely new compositions, with original artwork, just to see someone either copy it without paying or claim a “transformation” through a trivial change in the sonic distortion? We need some type of protection for creative works, the question is what form that protection takes.

Fair use,” however, isn’t the answer, because “fair use” isn’t an answer, it’s a means of formulating a factual questions for a jury to decide, i.e.:

Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

These words do not, themselves, answer anything. They do not tell a documentary filmmaker whose camera pans across a TV screen in the room or a journalist publishing excerpts from a not-yet published work if they have infringed upon the original creator’s copyright. They set up a framework by which a jury decides the question.

Such is the nature of the law. I represent plaintiffs, and so have, unsurprisingly, long argued in favor of the need to use a jury trial, rather than judicial decisions based on mere lawyer arguments (rather than sworn testimony), as well as the problems with “loser pays” systems.

But copyright is different because copyright law is different, primarily because of the “statutory damages.” That’s how a record company can convince a court to enter a judgment deeming an MP3 to be worth $22,500 — because that’s the law as Congress has written it.

That’s what apparently happened here. Maisel’s lawyers claimed they sought “either statutory damages up to $150,000 for each infringement at the jury’s discretion and reasonable attorneys fees or actual damages and all profits attributed to the unlicensed use of his photograph, and $25,000 for Digital Millennium Copyright Act (DMCA) violations.” (Emphasis mine). Rubbish; the “actual damages” were minimal, as were the “all profits.” They were going to demand the statutory damages, the same ones that absurdly and unreasonably hold any copyright infringement or any size — even if only a single Kind of Bloop was sold — is worth up to $150,000.

In a word, that’s unjust. A brain damaged child is not presumed to have suffered any injury. A burned down house is not presumed to be worth a single dollar. A defrauded investor is not presumed to have lost anything at all. Each must prove, under the law, every penny to which they are entitled; the sole exception to this law is the statutory damages under copyright law.

I have a good idea of why Maisel wanted $32,500: that was probably somewhere near the fees his own lawyers charged him to investigate the case, send threatening letters, and jawbone Baio into giving up. In most lawsuits — like personal injury, negligence, or fraud — that sort of excess would be the plaintiff’s problem, since he wouldn’t be able to recover the attorney’s fees, much less “statutory damages” far larger than the real damage. The statutory damages were the Sword of Damocles dangling over Baio’s head, the only real threat that compelled him to settle rather than simply let the court process do its work and then, in the unlikely event he was found liable, pay back the de minimus “actual damages” and “profits” from the infringement.

It doesn’t have to be that way; we can send copyright claims initially to agency review or to arbitration or alter the statutory damages available. I’m normally on the plaintiff’s side in copyright claims, but, frankly, the cases I work on — in which a profitable business has literally copied my client’s creative work, without attribution or license — don’t need the statutory damages to survive, they can prove their damages just like my personal injury and financial fraud clients, and they would likely benefit from early resolution like agency review.